Case 1:22-cv-01264-BAH Document 14 Filed 01/11/23 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`GLYCOBIOSCIENCES, INC.,
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`Plaintiff,
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`v.
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`Civil Action No. 22-1264 (BAH)
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`Chief Judge Beryl A. Howell
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`VICHY LABORATORIES, S.A. and
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`L’ORÉAL, S.A.
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`Plaintiff Glycobiosciences, Inc., a Canadian cosmetic and pharmaceutical company, owns
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`two patented formulae that are allegedly being infringed by Vichy Laboratories, S.A. and L’Oréal,
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`S.A. (collectively, “defendants”).1 Plaintiff sued defendants, alleging claims of patent
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`infringement. See 35 U.S.C. §101 et. seq. Defendants now move to dismiss, claiming, inter alia,
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`that personal jurisdiction is lacking over them in this judicial district. For the reasons below,
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`defendants’ motion to dismiss is granted, without prejudice.
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`I.
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`BACKGROUND
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`The relevant factual and procedural background is summarized below.
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`A. Factual Background
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`Vichy Laboratories S.A. is named as a defendant in this action, but defendants clarify that no entity with that
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`name exists and that an entity named “Vichy LLC” is wholly owned by L’Oréal USA with “Vichy” used as a brand
`name. Defs.’Mot. at 5 (explaining that “Vichy” is “a brand used by L’Oréal USA and there is a separate LLC—named
`Vichy LLC—for that brand. L’Oréal USA is the only member of Vichy LLC and the LLC has no employees or
`operations.”). Plaintiff concedes that Vichy Laboratories S.A. does not exist, and Vichy LLC is merely part of L’Oréal
`USA. See Pl’s Opp’n at 1 n.1 (“Defendant Vichy Laboratories is apparently a non-entity that is simply a brand name
`of Defendant L’Oréal S.A. . . . Thus[,] the Defendants collapse back into L’Oréal S.A.”). Consequently, assessment
`of personal jurisdiction focuses only on L’Oréal S.A.
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`Case 1:22-cv-01264-BAH Document 14 Filed 01/11/23 Page 2 of 12
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`Plaintiff is a successful Canadian cosmetic and pharmaceutical company that owns the
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`following two patents at issue: (1) Patent No. 9,821,005, issued by the U.S. Patent and Trademark
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`Office (“USPTO”) to plaintiff on November 21, 2017, for the formula of a gel containing specific
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`percentages of bio-fermented sodium hyaluronate, hydroxyethylcellulose, polyethylene glycol,
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`methylparaben, and water, Pls.’ Compl. (“Compl.”), ¶¶ 1, 12, 17, ECF No. 1; and (2) Patent No.
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`10,322,142, issued by USPTO to plaintiff on June 18, 2019, for the formula of a polymer matrix
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`composed of specific percentages of bio-fermented sodium hyaluronate, non-ionic polymer,
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`polyethylene glycol, and water, along with the inclusion “of an active therapeutic ingredient in
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`addition to the Hyaluronic Acid,” id. ¶¶ 1, 13, 18. Both patents expire on August 5, 2035. Id.
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`¶ 13.
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`L’Oréal S.A., a corporation with its principal place of business and headquarters in Clichy,
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`France, allegedly sells and distributes products using formulas similar to those that plaintiff has
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`patented. See Id. ¶ 3, 19. Specifically, L’Oréal S.A. manufactures, distributes, and sells three
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`cosmetics under the name Revitalift, which “contain high concentrations of Hyaluronic Acid in a
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`Polymer matrix which includes a non-ionic polymer and are formulations that have all of the
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`elements of one or more of the claims of the Glyco Patents and/or have formulae that are equivalent
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`to the claimed formulas.” Id. ¶ 14. Likewise, “Vichy manufactures and sells” three products under
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`the name “Liftactiv,” each “contain[ing] high concentrations of Hyaluronic Acid in a Polymer
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`matrix which includes a non-ionic polymer and are formulations that have all of the elements of
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`one or more of the claims of the Glyco Patents and/or have formulae that are equivalent to the
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`claimed formulas.” Id. ¶ 15.
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`L’Oréal S.A. sells and distributes these products in the United States, including in the
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`District of Columbia, exclusively through L’Oréal d/b/a L’Oréal USA (“L’Oréal USA”). See id.
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`¶¶ 3–4, 6. Apart from the contacts of L’Oréal USA, the only other contact that L’Oréal S.A. has
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`in the United States is allegedly that an “Assistant Vice President – DIPI International Head of
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`Instrumental Cosmetics & Digital,” named Dr. Roy P. Diaz, works out of an office located at 111
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`Terminal Avenue in Clark, New Jersey. Pl.’s Opp’n, Ex. C at 1 (Email, dated on March 22, 2022,
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`to plaintiff’s representative from Dr. Diaz with the latter’s job title and office address in the
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`signature block of the email) (“Diaz Email”), ECF No. 22-1.
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`B. Procedural Background
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`In an effort to resolve the dispute amicably, plaintiff contacted and presented the two patent
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`licenses at issue to L’Oréal S.A., with a request that defendant stop selling the allegedly patent-
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`infringing products. See Compl. ¶¶ 16, 24, 30, 36, 40. L’Oréal S.A. declined the request, see id.,
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`prompting plaintiff to initiate the instant lawsuit, claiming that defendants willfully infringed both
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`patents. Id. at 10, ¶¶ A-G. Plaintiff seeks a permanent injunction, compensatory damages,
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`enhanced damages, attorneys’ fees, prejudgment interest, and post judgment interest. Id. at 10, ¶¶
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`H-M.
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`Defendants timely moved to dismiss for lack of personal jurisdiction, improper service,
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`and improper venue, see Defs.’ Mot. to Dismiss (“Defs.’ Mot”), ECF No. 10, which motion
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`plaintiff opposes, see Pl.’s Opp’n to. Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 12. With briefing
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`completed, see Defs.’ Reply Mem. in Supp. Mot. to Dismiss (“Defs.’ Reply”), ECF No. 13,
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`defendants’ motion is now ripe for resolution.
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`II. LEGAL STANDARD
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`“Personal jurisdiction is ‘an essential element of the jurisdiction of a district . . . court,’
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`without which the court is ‘powerless to proceed to an adjudication.’” Jankovic v. Int’l Crisis
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`Grp., 494 F.3d 1080, 1086 (D.C. Cir. 2007) (alteration in original) (quoting Ruhrgas AG v.
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`Marathon Oil Co., 526 U.S. 574, 584 (1999)). To survive a motion to dismiss for lack of personal
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`Case 1:22-cv-01264-BAH Document 14 Filed 01/11/23 Page 4 of 12
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`jurisdiction, under Federal Rule of Civil Procedure 12(b)(2), the plaintiff must “make a prima facie
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`showing of the pertinent jurisdictional facts.” Livnat v. Palestinian Auth., 851 F.3d 45, 56–57
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`(D.C. Cir. 2017) (quoting First Chi. Int’l v. United Exch. Co., 836 F.2d 1375, 1378 (D.C. Cir.
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`1988)). The prima facie showing requires specific factual allegations connecting each defendant
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`to the forum. First Chi. Int'l, 836 F.2d at 1378. While the complaint’s factual allegations must be
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`accepted as true, and all reasonable inferences must be drawn in plaintiff’s favor, Bernhardt v.
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`Islamic Republic of Iran, 47 F.4th 856, 861 (D.C. Cir. 2022), mere conclusory statements and bare
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`allegations are insufficient, Livnat, 851 F.3d at 57.
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`Unlike on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the
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`court “may consider materials outside the pleadings in deciding whether to grant a motion to
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`dismiss for lack of jurisdiction.” Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.
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`Cir. 2005) (citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)). Indeed,
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`jurisdictional arguments may be premised on the “pleadings, bolstered by such affidavits and other
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`written materials as [the parties] can otherwise obtain.” Mwani v. bin Laden, 417 F.3d 1, 7 (D.C.
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`Cir. 2005). “When deciding personal jurisdiction without an evidentiary hearing—as here—the
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`‘court must resolve factual disputes in favor of the plaintiff.’” Livnat, 851 F.3d at 57 (quoting
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`Helmer v. Doletskaya, 393 F.3d 201, 209 (D.C. Cir. 2004)). The Court, however, “‘need not accept
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`inferences drawn by plaintiffs if such inferences are unsupported by the facts.’” Id. (quoting
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`Helmer, 393 F.3d at 209).
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`III. DISCUSSION
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`Defendants argue that the Court lacks the power to adjudicate this dispute because L’Oréal
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`S.A. is a foreign company whose contacts in the United States are solely through L’Oréal USA,
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`which operates as a separate legal entity and is not a party to the lawsuit. According to defendants,
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`L’Oréal S.A. lacks the requisite minimum contacts in the United States to satisfy the requirements
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`for personal jurisdiction under the Fifth Amendment’s Due Process Clause. Mot. at 6; Reply at 5;
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`see also U.S. CONST. amend. V.2 Defendants are right.
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`It is hornbook law that “a defendant outside a forum’s borders may be subject to suit” only
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`if the defendant has “‘certain minimum contacts with [the forum] such that the maintenance of the
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`suit does not offend traditional notions of fair play and substantial justice.” Livnat v, 851 F.3d at
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`48 (quotation marks omitted) (quoting Int’l Shoe Co. v. Wa., 326 U.S. 310, 316 (1945)). The D.C.
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`Circuit has further “explained that the Fifth Amendment’s Due Process Clause protects defendants
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`from being subject to the binding judgments of a forum with which they have established no
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`meaningful contacts, ties, or relations, and requires fair warning that a particular activity may
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`subject them to the jurisdiction of a foreign sovereign.” Id. (cleaned up).
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`“The traditional personal jurisdiction analysis asks first whether an applicable long-arm
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`statute authorizes the court to hear the case, and second whether doing so comports with due
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`process.” Atchley v. AstraZeneca UK LTD, 22 F.4th 204, 231 (D.C. Cir. 2022). Plaintiff’s claim
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`of specific jurisdiction is premised on Federal Rule of Civil Procedure 4(k)(2), which provides as
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`to claims arising under federal law that “serving a summons or filing a waiver of service establishes
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`personal jurisdiction over a defendant if: (A) the defendant is not subject to jurisdiction in any
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`state’s courts of general jurisdiction; and (B) exercising jurisdiction is consistent with the United
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`States Constitution and laws.” FED. R. CIV. P. 4(k)(2). In this way, Rule 4(k)(2) operates
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`“essentially [as] a federal long arm-statute.” Atchley, 22 F.4th at 232 (cleaned up). When Rule
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`4(k)(2) is invoked as the basis for the exercise of personal jurisdiction over a defendant not subject
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`Defendants also argue that venue is improper and plaintiff’s attempts at service is insufficient, Defs.’Mot. at
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`6–9, but these alternative arguments need not be reached because this motion is resolved on personal jurisdiction
`grounds.
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`to jurisdiction in any state’s courts of general jurisdiction, the relevant question is “whether a
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`defendant has sufficient contacts with the United States as a whole to justify the exercise of
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`personal jurisdiction under the Due Process Clause of the Fifth Amendment.” Mwani, 417 F.3d at
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`11; see also Atchley, 22 F.4th at 232 (quotation marks omitted) (“Besides proper service of process,
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`[Rule 4(k)(2)] requires only that jurisdiction be consistent with the United States Constitution and
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`laws.”). “Apart from the scope of the forum and potential federalism considerations, the Fifth and
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`Fourteenth Amendment Due Process inquiries are generally analogous.” Atchley, 22 F.4th at 232;
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`see also Livnat, 851 F.3d at 54 (explaining that “the Supreme Court and this court have applied
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`Fourteenth Amendment’s personal-jurisdictional standards in Fifth Amendment cases”); but see
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`Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S. Ct. 1773, 1783–84 (2017) (“[W]e leave open
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`the question whether the Fifth Amendment imposes the same restrictions [as the Due Process
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`Clause of the Fourteenth Amendment] on the exercise of personal jurisdiction by a federal court.”).
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`“The Supreme Court has developed two distinct analyses of the circumstances in which a
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`forum state may, consistent with due process, authorize its courts to exercise contact-based
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`personal jurisdiction over a defendant[:]” general jurisdiction and specific jurisdiction. Erwin-
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`Simpson v. AirAsia Berhad, 985 F.3d 883, 888 (D.C. Cir. 2021). General jurisdiction, which
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`“‘permits a court to assert jurisdiction over a defendant based on a forum connection unrelated to
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`the underlying suit[,]’” Livnat, 851 F.3d at 56 (quoting Walden, 571 U.S. at 283 n.6), is only
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`established when a plaintiff has shown that the defendant’s “affiliations with the State are so
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`continuous and systematic as to render them essentially at home in the forum State[,]” Goodyear
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`Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (quotation marks omitted).
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`Plaintiff does not argue that general jurisdiction may be exercised over L’Oréal S.A., see Pl.’s
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`Opp’n at 4–6, leaving the sole issue of whether the requirements for specific jurisdiction are
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`satisfied.
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` Unlike general jurisdiction, specific jurisdiction is based on “acts of a defendant that touch
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`and concern the forum.” Steinberg v. Int’l Criminal Police Org., 672 F.2d 927, 928 (D.C. Cir.
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`1981); see also Ford Motor Co. v. Montana Eighth Judicial District, 141 S.Ct. 1017, 1031 (2021)
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`(alteration in original) (explaining that specific jurisdiction “covers defendants less intimately
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`connected with a [forum], but only as to a narrower class of claims”). The “‘essential foundation
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`of specific jurisdiction’ is the ‘relationship among the defendant, the forum, and the litigation.’”
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`Atchley, 22 F.4th at 234 (quotation marks omitted) (quoting Ford, 141 S. Ct. at 1028). To show
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`that the court’s exercise of specific jurisdiction over the defendant satisfies due process, plaintiff
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`must establish the following: “(1) minimum contacts demonstrating that the defendant[s]
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`purposefully availed [themselves] of the forum; (2) relatedness between the contacts and the claim;
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`and (3) compliance with ‘fair play and substantial justice.’” Id. “These rules derive from and
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`reflect two sets of values—treating defendants fairly and protecting interstate federalism.” Ford
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`Motor Co., 141 S. Ct. at 1025 (quotation marks omitted). Additionally, “[p]leading specific
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`personal jurisdiction under Rule 4(k)(2) requires demonstrating a close nexus between the United
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`States, the foreign defendant’s conduct, and the plaintiff’s claim.” Bernhardt, 47 F.4th at 864.
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`As a threshold matter, the parties dispute whether L’Oréal USA’s contacts in the United
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`States may be imputed to L’Oréal S.A. “Ordinarily, a defendant corporation’s contacts with a
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`forum may not be attributed to affiliated corporations.” Johnson-Tanner v. First Cash Fin. Servs.,
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`Inc., 239 F. Supp. 2d 34, 38 (D.D.C. 2003). To tie a parent corporation’s contacts to its subsidiary,
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`the plaintiff must demonstrate that the corporate veil between the parent and the subsidiary’s veil
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`should be pierced, at least for jurisdictional purposes. Goodyear, 564 U.S. at 930; see also I.A.M.
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`Nat. Pension Fund, Ben. Plan A v. Wakefield Indus., Div. of Capehart Corp., 699 F.2d 1254, 1259
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`(D.C. Cir. 1983) (explaining that “where the two corporations are not really separate entities[,]
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`service on the parent will reach a foreign subsidiary”). “Whether one corporation is the alter ego
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`of another is a question of law to be decided by the court.” Johnson-Tanner, 239 F. Supp. 2d at
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`38. In other words, a plaintiff must show by affirmative evidence the following: “(1) is there such
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`unity of interest and ownership that the separate personalities of the corporation and the individual
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`no longer exist?; and (2) if the acts are treated as those of the corporation alone, will an inequitable
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`result follow?” Labadie Coal Co. v. Black, 672 F.2d 92, 97 (D.C. Cir. 1982).
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`Plaintiff makes only a feeble effort to show that either requirement for alter ego liability is
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`satisfied. In plaintiff’s view, the single allegation that “L’Oréal SA is the developer, formulator[,]
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`and primary manufacturer of the accused products and that L’Oréal USA receives at least
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`components and the final formulated product from L’Oréal S.A.” suffices to support the exercise
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`of “jurisdiction and venue in a patent infringement” action. Pl.’s Opp’n at 5–6. This conclusory
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`allegation is insufficient to demonstrate that L’Oréal S.A. “so dominated [L’Oréal USA] . . . as to
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`negate its separate personality.” Hart v. Dep't of Agric., 112 F.3d 1228, 1231 (D.C. Cir. 1997)
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`(quotation marks omitted). Plaintiff has not otherwise explained how the two-pronged inquiry in
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`Labadie Coal Company for piercing the corporate veil between L’Oréal S.A. and L’Oréal USA,
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`and attributing the latter’s contacts to the former, is met, particularly when set against the thorough
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`declaration submitted by defendants describing the independence of the two companies. See, e.g.,
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`BPA Int’l, Inc. v. Kingdom of Sweden, 281 F. Supp. 2d 73, 83 (D.D.C. 2003) (“[Plaintiff] produces
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`no evidence to counter the sworn affidavits submitted by Telia that there are no shared officers or
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`directors between Telia and TICI, financial records and account books are maintained separately,
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`and Telia has no role in TICI's day-to-day operations or corporate governance. . . . The mere
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`corporate relationship between Telia and TICI, without more, does not suffice.”); United States
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`ex. rel. Scollick v. Narula, 215 F. Supp. 3d 26, 37 (D.D.C. 2016) (citation omitted) (“With regard
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`to all the alleged alter ego relationships, plaintiff relator states that the defendants ‘have such a
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`unity of interest and ownership that the individuality of each entity ceased and they functioned as
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`a single entity.’ This is a legal conclusion insufficient to state a claim for relief.”).
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`Defendants explain, in a declaration from L’Oréal USA’s Senior Vice President of Finance,
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`Roy Rabinowitz, that L’Oréal USA “makes stringent efforts to observe standard corporate
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`formalities.” Defs.’ Mot., Ex. 1, Declaration of Roy Rabinowitz (“Rabinowitz Decl.”) ¶ 5, ECF
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`No. 10-1; see also id. at 5. This declaration further states that, “while L’Oréal USA keeps L’Oréal
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`S.A. informed about major issues and receives overall strategic guidance from L’Oréal S.A., it
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`operates independently from its parent,” Rabinowitz Decl. ¶ 5, providing as specific examples of
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`such independence between the companies that “L’Oréal USA maintains separate licensing and
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`distribution contracts, manufactures and distributes its own products, has its own board of
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`directors, issues separate financial statements, files separate tax returns, and maintains a workforce
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`separate from L’Oréal S.A.,” as well as “its own departments in areas such as finance, human
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`resources, legal, corporate communications, customer relations, Research and Innovation, and
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`marketing and advertising.” Id. Plaintiff makes no effort to rebut the Rabinowitz Declaration’s
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`observation that the corporate formalities between L’Oréal S.A. and L’Oréal USA are rigorously
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`observed, which confirms that the corporate veil between the two corporate entities has not and
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`may not be breached such that L’Oréal USA’s contacts can be attributed to L’Oréal S.A.
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`Stripped of the domestic subsidiary’s contacts, L’Oréal S.A.’s sole contact in the United
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`States is, allegedly, that Mr. Diaz, L’Oréal S.A.’s “Assistant Vice President - DIPI International
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`Head of Instrumental Cosmetics & Digital,” works out of an office based in New Jersey, and
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`plaintiff’s additional allegation that “Mr. Diaz [presumably] has a staff and that other employees
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`are also located in the New Jersey facility.” Pl.’s Opp’n at 6. Nothing in the Diaz Email cited by
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`plaintiff shows, however, that Mr. Diaz works for L’Oréal S.A.; instead, his signature block merely
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`mentions that he works for “L’ORÉAL Research & Innovation” at 111 Terminal Avenue in Clark,
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`New Jersey, which, as the Rabinowitz Declaration clarifies, is a facility “owned and operated by
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`L’Oréal USA,” Rabinowitz Decl. ¶ 7. Furthermore, Dr. Roy Diaz attests in his declaration that he
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`is an employee of L’Oréal USA, not L’Oréal S.A. Defs.’ Reply, Ex. 1, Declaration of Dr. Roy
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`Diaz ¶ 3 (“I have never been employed by L’Oréal S.A. and have never been an officer of that
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`company. Since September of 2014, I have been employed by L’Oréal USA[.]”), ECF No. 13-1.
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`Even assuming that L’Oréal S.A. does have an office in New Jersey, and that Mr. Diaz
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`works for L’Oréal S.A., rather than L’Oréal USA (which plaintiff has not shown), plaintiff does
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`not explain how that this singular office in one state is enough to evince that L’Oréal S.A. has
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`“avail[ed] itself of the privilege of conducting activities within the forum[.]” Ford, 141 S. Ct. at
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`1024 (quotation marks omitted). For example, plaintiff has not shown how large this office is,
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`how many employees work at this office, or what this office even does for L’Oréal S.A.’s business.
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`Plaintiff’s conclusory inference that Mr. Diaz presumably has a staff and employees need not be
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`accepted either. See Helmer, 393 F.3d at 209 (explaining that the court “need not accept inferences
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`drawn by plaintiffs if such inferences are unsupported by the facts” when deciding personal
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`jurisdiction without an evidentiary hearing). L’Oréal S.A. does not have sufficient minimum
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`contacts in the United States to satisfy the requirements for due process.
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`In addition to flunking the minimum contacts requirement, plaintiff has not explained how
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`L’Oréal S.A.’s presumed single employee in a single office is connected to its claim of patent
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`infringement, or how exercising specific jurisdiction on either defendant would comport with
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`Case 1:22-cv-01264-BAH Document 14 Filed 01/11/23 Page 11 of 12
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`“traditional notions of fair play and substantial justice.” Plaintiff’s only relevant argument to the
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`relatedness inquiry is that “[o]ther relevant employees frequent the United States for business
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`purposes related to the subject matter of this suit.” Pl.’s Opp’n at 6. Even if true, plaintiff’s
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`argument is far too general since the mere fact that some L’Oréal S.A. employees, who work on
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`the general “subject matter” of patents, “frequent” the United States falls well short of satisfying
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`the relatedness inquiry. See Berhnardt, 47 F.4th at 864 (“Pleading specific personal jurisdiction
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`under Rule 4(k)(2) requires demonstrating a close nexus between the United States, the foreign
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`defendant's conduct, and the plaintiff's claim.”); see also Livnet, 851 F.3d at (holding that, in a
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`lawsuit seeking to hold the Palestinian Authority vicariously liable for an armed attack at a holy
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`site in the West Bank, the plaintiff’s “declaration from a professor asserting that the Palestinian
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`Authority encourages terrorism against Jews and Israelis in order to influence U.S. policy in the
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`Palestinian Authority’s favor . . . establishe[d] no link between that practice and the . . . attack”).
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`Plaintiff’s abbreviated briefing on this point, see Pl.’s Opp’n at 4–6, can only be explained by its
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`flawed legal assumption that L’Oréal USA’s contacts may be automatically imputed to L’Oréal
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`S.A, see id. at 6 (“L’Oréal S.A. sells accused products into and in the United States, directly and
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`through its wholly owned subsidiary, that is sufficient for and venue in a patent infringement
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`suit.”), an assumption that is inconsistent with governing law on imputing a subsidiary’s contacts
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`to its parent.
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`IV. CONCLUSION AND ORDER
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`For the foregoing reasons, L’Oréal USA’s contacts cannot be imputed to L’Oréal S.A., and
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`plaintiff has failed to demonstrate that exercising personal jurisdiction over L’Oréal S.A. would
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`satisfy the requirements of the Fifth Amendment’s Due Process Clause. Accordingly, it is hereby
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`ORDERED that defendant’s Motion to Dismiss, ECF No. 19, is GRANTED; it is further
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`Case 1:22-cv-01264-BAH Document 14 Filed 01/11/23 Page 12 of 12
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`ORDERED that the plaintiff’s complaint is dismissed, without prejudice, for lack of
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`personal jurisdiction over defendants; and it is further
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`ORDERED that the Clerk of the Court is directed to close this case.
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`SO ORDERED.
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`Date: January 11, 2023
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`__________________________
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`BERYL A. HOWELL
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`Chief Judge
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